Citation Nr: 1551964
Decision Date: 12/11/15 Archive Date: 12/16/15
DOCKET NO. 14-07 164A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUE
Entitlement to service connection for a right knee disability, to include degenerative joint disease (DJD) and meniscus tear.
REPRESENTATION
Veteran represented by: Alabama Department of Veterans Affairs
ATTORNEY FOR THE BOARD
S. Hoopengardner, Associate Counsel
INTRODUCTION
The Veteran had active duty service from November 1974 to August 1975.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to service connection for patellofemoral pain, right knee (claimed as right knee condition). Additional evidence was received in November 2011 and in a December 2011 rating decision, the previous denial was confirmed and continued.
The Veteran originally filed a claim in September 2010 for entitlement to service connection for "[r]ight [k]nee." The evidence of record contains multiple diagnoses related to the Veteran's right knee and as such, the Veteran's claim has been expanded and recharacterized as indicated on the cover page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009)
This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Also, a review of the electronic records maintained in Virtual VA was conducted.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran filed a claim in September 2010 for entitlement to service connection and listed as the disability he was claiming "[r]ight [k]nee." The Veteran was afforded a VA examination in March 2014 and the examination report noted diagnoses of mild DJD of the right knee and meniscus tear.
Upon review of the evidence of record and specifically the Veteran's service treatment records (STRs), the issue is raised of whether the Veteran had a right knee disability that preexisted service. For example, a February 27, 1975 STR referenced the Veteran as being in a car accident and receiving trauma to his right knee when he was nine years old. Another February 27, 1975 STR referenced a complaint from the Veteran of "[right] knee pain assoc[iated] [with] giving way since age 12 - auto accident." A March 1975 orthopedic STR referenced the Veteran as having a "[history] of knee injury (auto accident) age 12" and that "[s]ince then has intermittent episodes of knee giving way, pain recurring." A May 1975 STR referenced the Veteran as having "had an auto accident at 12 [years old] which has subsequently resulted in [right] knee pain ever since. The [patient] was told he has [right] knee chondromalacia." A July 1975 Medical Board Report noted a present diagnosis of "[p]atellofemoral pain, right knee, secondary to medial subluxation of the patella" and stated that the Veteran "state[d] that he was involved in an automobile accident at age 12 and that his right knee was injured at that time. The [Veteran] states that he has had severe pain in his right knee ever since the accident and was told that he had right knee chondromalacia." An accompanying Medical Board Report Cover Sheet indicated that the Veteran's right knee condition existed prior to service and was not aggravated by service. In addition, the Veteran submitted relevant lay statements. In a November 2011 statement, the Veteran stated in reference to his right knee that "[t]he arduous physical training of Boot Camp and the constant running and long marches aggravated this condition." The Veteran also stated that "I was found physically fit prior to my enlistment in the US Marine Corps and evidence shows that I was treated through my short career in the US Marine Corps and as such, this condition became more severe." In an August 2012 statement, the Veteran stated that when he was twelve, he "was involved in a minor accident that required no hospitalization or out patient treatment. Just a mild dressing that left a two inch scar at top of knee." The Veteran also stated that he "had no problems with the [right] knee which resulted in a normal and healthy healing process" and referenced having no problems with his right knee through high school and subsequently joining the Marines. The Veteran further referenced that after graduating from boot camp in-service he "started to experience" discomfort, pain and swelling in his right knee. In a March 2014 VA Form 9, the Veteran stated that "I did not have any diagnosis or pain prior to the military. All of this started in the Marine Corp."
A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. See 38 U.S.C.A. §§ 1111, 1132 (West 2014); 38 C.F.R. § 3.304(b) (2015). In other words, "[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the presumption of soundness applies, the burden then shifts to "the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service." See id.
In this case, the Veteran's November 1974 entrance examination report noted normal clinical evaluation for the Veteran's lower extremities and "spine, other musculoskeletal" and noted no defects. A notation was made as to a scar near the Veteran's right knee. While an accompanying November 1974 Report of Medical History included a notation from the Veteran of "don't know" in response to if he ever had or had now "'trick' or locked knee," in the section completed by a physician, no mention of any defects was included and a stamp of "[d]enies significant past medical history and complaints" was included. While notation was made as to a scar near the Veteran's right knee on the November 1974 examination report, no diagnosis was noted upon entry with respect to the Veteran's right knee and therefore the Veteran was presumed sound upon entrance to service with respect to his right knee. In this regard, the Board notes that the AOJ did not consider or apply the presumption of soundness to the Veteran's claim and instead incorrectly applied the presumption of aggravation, which is for application when a preexisting disability is noted upon entrance into service. See Horn v. Shinseki, 25 Vet. App. 231, 234 (2012) (referencing a "statutory provision that pertains to cases in which a preexisting condition is noted on an entrance examination and the claimant contends that this condition was aggravated in service" and stating that "[t]his provision is known as the 'presumption of aggravation'"). As discussed above, no right knee disability was noted upon entrance to service and the Veteran is therefore presumed to have been sound upon entrance to service with respect to his right knee. This presumption, however, is subject to rebuttal in certain cases such as the instant on if it can be shown by clear and unmistakable evidence that such disability pre-existed service AND was clearly and unmistakably NOT aggravated during service beyond the natural progression of the pre-existing disorder.
As noted, the Veteran was afforded a VA examination in March 2014 and the AOJ requested an opinion that appeared to be based on the presumption of aggravation. See February 2014 Compensation and Pension Exam Inquiry. The examiner provided an opinion that stated that "[t]he disorders now present, namely [m]eniscus [t]ear and [m]ild DJD changes [r]ight [k]nee are NOT in parts of the knee involved in the medical board proceedings that ended [the Veteran's] service." It was further noted that "it is less likely than not that an anterior compartment ([p]atellar) disorder could cause the medial posterior meniscus tear" and "[t]he mild DJD changes are the result of the major meniscus removal performed." Initially, the Board notes that the reference to "major meniscus removal" was presumably a reference to an October 2011 surgery (which was referenced in the examination report and the VA treatment records of record). While the examiner's opinion stated that DJD was the result of this October 2011 meniscus surgery, the medical evidence of record indicated that the Veteran had DJD of his right knee prior to the October 2011 surgery. See, e.g., October 2010 Private Medical Record from Dr. J.C. (stating "[r]ight knee x ray reveals incipient DJD); December 6, 2010 VA Treatment Note (referencing a complaint of bilateral knee pain and containing an assessment of "DJD, KNEE"). As such, part of the March 2014 VA opinion appears to have been based on an inaccurate factual premise. As part of the March 2014 VA opinion was based on an inaccurate factual premise and the examiner additionally did not provide an opinion that considered the presumption of soundness (including whether such presumption can be rebutted as noted above), the Board concludes that remand is required for an additional VA examination and opinion. Such opinion must consider and address the presumption of soundness, as detailed in the remand directives below.
In addition, VA treatment records appear to be outstanding and must be obtained on remand. The March 2014 Statement of the Case (SOC) noted under the evidence heading electronic review of VA Medical Center (VAMC) records from the Miami VAMC from May 2, 2003 to November 23, 2011 and for the Birmingham VAMC from December 12, 2011 to March 6, 2014. Of record are what appears to be complete VA treatment records from the Miami VAMC from May 2, 2003 to November 18, 2011; it appears based on the March 2014 SOC that additional records from November 2011 may be of record from the Miami VAMC and thus all records from the Miami VAMC from November 2011 must be obtained. With respect to Birmingham VAMC records, the only VA treatment records of record are dated on December 12, 2011. As such, all outstanding VA treatment records from the Birmingham VAMC must be obtained, to include from December 12, 2011 to March 6, 2014. Any additional VA treatment records subsequent to those periods must also be obtained.
Accordingly, the case is REMANDED for the following action:
1. Obtain all outstanding VA treatment records, to include from the Miami VAMC from November 2011, from the Birmingham VAMC (from December 12, 2011 to March 6, 2014) and any additional VA treatment records subsequent to those periods.
2. Afford the Veteran a VA examination with respect to his right knee. All indicated evaluations, studies, and tests deemed necessary must be accomplished and all findings reported in detail.
The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished.
The examiner must provide an opinion addressing the following:
a. Whether a right knee disability clearly and unmistakably (obvious, manifest and undebatable) preexisted service.
While review of the entire claims file is required, attention is invited to the Veteran's lay statements, particularly the August 2012 statement in which he described the preservice accident referenced in the STRs relating to his right knee and the March 2014 VA Form 9, in which the Veteran stated that "I did not have any diagnosis or pain prior to the military. All of this started in the Marine Corp."
b. If and only if the examiner determines that a right knee disability clearly and unmistakably preexisted service, the examiner must state whether it is clear and unmistakable (obvious, manifest and undebatable) that the preexisting right knee disability WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest and undebatable) that any increase in service was due to the natural progress.
While review of the entire claims file is required, attention is invited to the multiple STRs of record documenting treatment and referencing the Veteran's right knee and the Veteran's lay statements, particularly his November 2011 statement, in which he stated in reference to his right knee that "[t]he arduous physical training of Boot Camp and the constant running and long marches aggravated this condition" and also stated that "I was found physically fit prior to my enlistment in the US Marine Corps and evidence shows that I was treated through my short career in the US Marine Corps and as such, this condition became more severe."
c. If the examiner finds that a right knee disability clearly and unmistakably preexisted service but responds in the negative to "b," then is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's current right knee disability, to include DJD and meniscus tear, is related to the preexisting right knee disability that was aggravated during service.
d. If response to question "a" is negative, is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's current right knee disability, to include DJD and meniscus tear, had its clinical onset during active service or is related to any in-service disease or injury.
While review of the entire claims file is required, attention is invited to the multiple STRs of record documenting treatment and referencing the Veteran's right knee and the Veteran's lay statements, to include those referenced above.
The examiner must include a thorough rationale for any conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.
3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claim in light of all pertinent evidence and legal authority. If the benefit sought remains denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
_________________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).